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Friends of Lubavitch, Inc v. Baltimore County

United States District Court, D. Maryland

September 30, 2019

FRIENDS OF LUBAVITCH, et al., Plaintiffs,


          George L. Russell, III United States District Judge.

         THIS MATTER is before the Court on Defendants Baltimore County, Maryland, Baltimore County Department of Planning (“Department of Planning”), and Baltimore County Board of Appeals's (the “Board of Appeals”) (collectively, the “County”) Motion to Dismiss (ECF No. 15) and Defendant Circuit Court for Baltimore County's (the “Circuit Court”) Motion to Dismiss (ECF No. 20). The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the following reasons, the Court will grant the Motions.

         I. BACKGROUND[1]

         Plaintiff Friends of Lubavitch, Inc. (“FoL”) is a religious corporation that was formed to support the global Orthodox Jewish Chabad-Lubavitch movement in Maryland and which has helped establish Chabad centers, a rabbinical school, and a primary school. (Compl. ¶¶ 3, 23, ECF No. 1). Plaintiffs Rabbi Menachem Rivkin (“Rabbi Rivkin”) and Sheina Rivkin (collectively, the “Rivkins”) have administered one of those centers, the Towson Chabad House (the “Chabad House”), which has served Orthodox Jewish students or alumni of the nearby Towson University and Goucher College in Baltimore County, Maryland, including the eight other Individual Plaintiffs.[2] (Id. ¶¶ 4-13, 19). There are more than fifty such Chabad Houses in the United States, many of which serve as residences to their rabbis or schluchim, and many are zoned as residences or the local equivalent. (Id. ¶ 24).

         In September 2008, FoL purchased the property at 14 Aigburth Road in Towson, Maryland (the “Property”), on which sat a 2, 200-square-foot residence, intending to use it as a Chabad House, which would “provide Jewish religious hospitality and education” to local college students and residents. (Id. ¶¶ 18, 21). FoL picked the Property because it is approximately 1.7 miles from Goucher College and 700 feet from Towson University; Orthodox Jews cannot travel by automobile on the Sabbath, and the nearest Orthodox Jewish synagogue is 7.1 miles from the Property. (Id. ¶ 19). Beginning in 2008, the Rivkins posted a sign identifying the Property as the Chabad House and hosted students for kosher meals, prayer, and Jewish holidays. (Id. ¶¶ 25, 27). Within a few years, the popularity of the Chabad House increased such that FoL and the Rivkins decided to expand the building on the Property. (Id. ¶ 29).

         In December 2011, Rabbi Rivkin met with several Baltimore County officials about the contemplated expansion (the “Expansion”) of the Chabad House. (Id. ¶ 31). They told him to consult with his neighbors, which he did. (Id.). In or about May 2014, FoL and Rabbi Rivkin obtained financing for the Expansion. (Id. ¶ 32). Thereafter, Rabbi Rivkin consulted with Baltimore County's Director of Permits, Approvals, and Inspections Arnold Jablon, who told Rabbi Rivkin that he would grant a building permit for the Expansion if the Chabad House qualified under local zoning laws as a synagogue. (Id.). Even though FoL and the Rivkins did not intend to build a synagogue, in anticipation of the issuance of a building permit, FoL and the Rivkins held a public ground-breaking in June 2014. (Id. ¶¶ 34-35).

         At some point thereafter, neighbors and other Towson residents opposed the Expansion, which would at least triple the building square footage on the Property. (Id. ¶ 36; Defs.' Mot. Dismiss Ex. C [“Court of Special Appeals Opinion”] at 1, 8, ECF No. 15-5). When Rabbi Rivkin sought to meet with Jablon in October 2014, Jablon refused. (Id. ¶ 37). In an effort to address neighbors' concerns, Rabbi Rivkin offered to reduce the height of the proposed Expansion and to make the front of the building appear more “residential.” (Id. ¶ 38). Rabbi Rivkin made no formal request that the building on the Property qualify as a synagogue. (Id.).

         On January 29, 2015, the County issued a “Code Enforcement Correction Notice” (the “Notice”) against the Chabad House, alleging that: (1) it was “an illegal House of Worship/ Religious Institution” that did not meet “the [residential transit area] requirements, the parking requirements and the Non Residential Principle Setback requirements” of the Baltimore County Zoning Regulations (“BCZR”); and (2) it was “a Community Building” that failed to have a “Special Exception Hearing.” (Id. ¶ 39). Under the BCZR, “buildings for religious worship or other religious institutions” are permitted as a matter of right, whereas “community buildings” are only permitted by “special exception.” BCZR §§ 1B01.1.A.3, C.4 (2019). The Notice was converted into a citation (the “Citation”) on March 2, 2015. (Compl. ¶ 39). Jablon told Rabbi Rivkin and his attorney that they should request a hearing under BCZR § 500.7, which they then did. (Id. ¶ 42). Specifically, FoL petitioned for a special hearing “to confirm continued use of the subject property as a residential parsonage with an accessory use for religious worship and religious education.” (Court of Special Appeals Opinion at 6).[3] Administrative Law Judge John Beverungen (“ALJ Beverungen”) presided over the hearing on June 19 and 25, 2015. (Compl. ¶ 42). At the hearing, Department of Planning Director Andrea Van Arsdale recommended the denial of FoL's petition because “it was operating a ‘community building,' which would require a special exception.” (Id. ¶ 43). On June 26, 2015, ALJ Beverungen ruled the Chabad House was not “a residential parsonage” because it was not attached to a house of worship and denied FoL's Petition. (Id. ¶ 45).[4] On August 10, 2015, ALJ Beverungen denied Rabbi Rivkin's motion for reconsideration, noting that he had “no authority to insist that the Code Enforcement Bureau rescind a citation or correction notice issued by one of its inspectors.” (Id.). FoL did not appeal. (Defs.' Reply Ex. H (“Board of Appeals Decision”) at 2, ECF No. 30-1).

         On August 20, 2015, Rabbi Rivkin, through a letter from his attorney, asked the County “what specific objection(s) the County has to Rabbi and Mrs. Rivkin's submitting their building plans for review, comment and approval” so they could proceed with the Expansion. (Compl. ¶ 46). Jablon told Rabbi Rivkin that he would not permit the Expansion unless Rabbi Rivkin submitted another petition for a Section 500.7 hearing, which Rabbi Rivkin then did on behalf of FoL.[5] (Id. ¶ 47). “The neighbors began filing complaints with County Code Enforcement. Citations were issued but went nowhere.” Board of Appeals Decision at 3. The neighbors then filed their own petition, 16-308-SPH. Id. On March 31, 2016, ALJ Beverungen presided over a second hearing regarding the petitions, where Jablon and Van Arsdale opposed FoL's second petition because the Expansion would not “be solely for ‘additional living space for the family who resides therein'” because the Rivkins also hosted meals for local Orthodox Jews at the Chabad House. (Compl. ¶ 49). Nevertheless, on April 6, 2016, ALJ Beverungen dismissed the neighbors' petition as premature and approved Rabbi Rivkin's application for the Expansion. (Id. ¶ 51; Court of Special Appeals Opinion at 7-8; Board of Appeals Decision at 4).[6] On April 19, 2016, Rabbi Rivkin received a building permit for the Expansion, a 6, 600-square-foot structure, and construction began on June 6, 2016. (Compl. ¶ 52; Court of Special Appeals Opinion at 8, 10).

         On July 27, 2016, Rabbi Rivkin learned from a neighbor that a covenant (the “Covenant”), created in 1950 by the Property's deed, provided that its dwelling “shall have a setback equal to one-half of the total setbacks of the two houses erected on the lots adjoining to the East and West thereof, measured to the centre of said houses, exclusive of porches.” (Compl. ¶ 53). Because halting construction and revising the plan for the Expansion would be very expensive, “construction continued pursuant to the building permit.” (Id. ¶ 54).

         On August 12, 2016, Robin Zoll, the Rivkins' next-door neighbor who had informed them of the Covenant, and the Aigburth Manor Association of Towson, Inc. (“the Neighbor Plaintiffs”) sued FoL in the Circuit Court for Baltimore County to enforce the Covenant with respect to the Expansion. (Id. ¶ 56); see Zoll v. Friends of Lubavitch, Inc., No. 03-C-16-008420 (Cir.Ct.Balt.Cty. filed Aug. 12, 2016), On March 30 and 31, 2017, Circuit Court Judge Susan Souder presided over a bench trial regarding the Zoll lawsuit. (Compl. ¶ 57). Souder heard testimony regarding the community objection to the Expansion beginning in 2012 when it was first proposed, as well as about the Covenant. (Id. ¶ 58). On April 7, 2017, Judge Souder ruled that the Covenant applied and ordered the “removal” of the Expansion insofar as it violated the Covenant. (Id.). FoL appealed. (See Id. ¶ 61).

         Meanwhile, on October 27, 2016, the Board of Appeals began a de novo hearing on FoL's second petition (16-170-SPH) and the neighbors' petition (16-308-SPH). (Board of Appeals Decision at 4-5). The hearing was scheduled to continue on January 12, 2017, and on January 11, 2017, FoL dismissed its petition, and its counsel withdrew. (Id. at 5). Rabbi Rivkin did not appear to testify again, instead delivering a letter to the Board of Appeals in February 2017 that threatened a claim under the Religious Land and Institutionalized Persons Act (“RLUIPA”). (Id. at 6). On September 5, 2017, the Board of Appeals ruled 2-1 in favor of the neighbors regarding their petition. (Id. at 7). They credited the neighbors testimony over Rabbi Rivkin's and noted that the building on the Property was now close to 9, 000 square feet with a dining room that could seat more than 120 people. (Id. at 6-9). Noting it only had the power to make a declaration, not issue an injunction, the Board of Appeals declared that the Chabad House's use of the Property “has exceeded the use compatible with that of a residential property” and that it “has assumed the dual status of a residence and a community center by consistently hosting events advertised to hundreds of people and attended by scores, and by acting as an outreach center to college students.” (Compl. ¶ 59; Board of Appeals Decision at 16-17). The dissenting opinion called the zoning status of the Chabad House a “vexing question” and would have denied the petition and let the County Department of Permits, Approvals and Inspections determine on a case-by-case basis whether the Property's use violates the BCZR. (Board of Appeals Decision at 19-20).

         On October 23, 2017, the Court of Special Appeals of Maryland affirmed the Circuit Court's order and, based in part on the “Zoning Hearings, ” held that there was “no abuse in discretion by the trial court fashioning an injunction akin to specific performance.” (Compl. ¶ 61). Judge Souder had appointed a Receiver, Debra Dopkin, to administer compliance with the Circuit Court's ordered injunctive relief. (Id. ¶ 62). The Receiver recommended removal of the Property's original home and the relocation of the Expansion such that it would satisfy the Covenant, a course of action that would cost approximately $250, 000.00. (Id.). On October 31, 2018, Judge Kathleen Cox of the Circuit Court rejected the Receiver's recommendation and ordered the Expansion “razed.” (Id. ¶ 63). Judge Cox concluded that, because “FOL has been using the property without obtaining necessary approvals or complying with regulations, ” Rabbi Rivkin had “unclean hands, ” and that accepting the Receiver's recommendation would “tacitly endorse that which has been repeatedly found to be a violation of existing restrictions in the residential community.” (Id.). On December 12, 2018, FoL and the Rivkins moved to stay Judge Cox's order. (Id. ¶ 65). On January 10, 2019, the Circuit Court granted FoL and the Rivkin's motion for stay, which the Neighbor Plaintiffs appealed on February 11, 2019. (Def. Cir. Ct. Balt. Cty.'s Mot. Dismiss [“Cty. Mot.”] Ex. 2 [“State Court Docket”] at 17-18, ECF No. 20-2).

         On December 20, 2018, Plaintiffs sued the County and the Circuit Court. (ECF No. 1). In their nine-count Complaint, Plaintiffs assert that: Defendants substantially burdened their religious exercise in violation of RLUIPA, 42 U.S.C. § 2000cc(a)(1) (2018) (Count I); Defendants imposed standards and conditions that treat religious institutions on less than equal terms with nonreligious institutions in violation of RLUIPA, § 2000cc(b)(1) (Count II); Defendants' implementation of the County land use regulations discriminates against Plaintiffs on the basis of their religion in violation of RLUIPA, § 2000cc(b)(2) (Count III); Defendants' implementation of the County land use regulations will totally exclude the Plaintiffs' religious activity from Baltimore County in violation of RLUIPA, § 2000cc(b)(3)(A) (Count IV); Defendants' implementation of the County land use regulations unreasonably limits the Plaintiffs' religious activity in violation of RLUIPA, § 2000cc(b)(3)(B) (Count V); Defendants' implementation of the County land use regulations violates the Free Exercise Clause of the First Amendment to the U.S. Constitution (Count VI); Defendants' implementation of the County land use regulations violates the Equal Protection Clause of the Fourteenth Amendment (Count VII); Defendants' arbitrary implementation of the County land use regulations violates the Due Process Clause of the Fourteenth Amendment (Count VIII); and that the County, through its employees, defamed FoL and Rabbi Rivkin (Count IX). (Compl. ¶¶ 18-90). Plaintiffs bring their three constitutional claims (Counts VI-VIII) under 42 U.S.C. § 1983 (2018). (Compl. at 18-19). Plaintiffs seek declaratory and injunctive relief, as well as monetary damages and their attorney's fees and costs. (Id. at 20-21).

         On February 28, 2019, the County filed its Motion to Dismiss, (ECF No. 15), as did the Circuit Court, (ECF No. 20). On April 15, 2019, Plaintiffs filed a combined Opposition to both Motions. (ECF No. 24). On May 29, 2019, the County filed a Reply. (ECF No. 30). On June 27, 2019, the Circuit Court filed a Reply. (ECF No. 31).[7]


         A. Circuit Court Motion to Dismiss

         1. Standard of Review

         “The purpose of a motion under Federal Rule of Civil Procedure 12(b)(6) is to “test[ ] the sufficiency of a complaint, ” not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A complaint fails to state a claim if it does not contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that is plausible on its face, ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is not required to forecast evidence to prove the elements of the claim, the complaint must allege sufficient facts to establish each element. Goss v. Bank of America, N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012)), aff'd sub nom. Goss v. Bank of America, NA, 546 Fed.Appx. 165 (4th Cir. 2013).

         In considering a Rule 12(b)(6) motion, a court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But, the court need not accept unsupported or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions couched as factual allegations, Iqbal, 556 U.S. at 678.

         2. Analysis

         The Circuit Court argues that the Eleventh Amendment bars the Plaintiffs' claims against it. Plaintiffs counter that their claims for prospective injunctive relief may proceed under the Supreme Court's holding in Ex parte Young, 209 U.S. 123 (1908). The Court agrees with the Circuit Court.

         The Eleventh Amendment to the United States Constitution provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State.” U.S. Const. amend. XI. Notwithstanding the Eleventh Amendment's explicit mention of only “Citizens of another State, ” the U.S. Supreme Court has construed the Eleventh Amendment as also protecting states from federal court suits brought by the state's own citizens. Id.; Lee-Thomas v. Prince George's Cty. Pub. Sch., 666 F.3d 244, 248 (4th Cir. 2012) (quoting Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990)). Thus, the Eleventh Amendment bars actions by any private citizen against a state. See Project Life, Inc. v. Glendening, 139 F.Supp.2d 703, 706-07 (D.Md. 2001) (quoting Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001)). Additionally, “states' immunity extends to ‘state agents and state instrumentalities.'” Lee-Thomas, 666 F.3d at 248 (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). Maryland state courts, like the Circuit Court, are arms of the State, therefore, are immune from suit in federal court. See Coleman v. Court of Appeals of Maryland, 566 U.S. 30, 35 (2012) (affirming on the grounds the lower court, which ruled that Maryland Court of Appeals is an entity or instrumentality of the State for purposes of sovereign immunity); Alexander v. Dist. Ct. of Md. for Charles Cty., 2008 WL 6124449, at *7 (D.Md. Mar. 20, 2008).

         Although states retain immunity from suit, this constitutional bar is not absolute and is subject to three exceptions, only one of which is relevant here. Lee-Thomas, 666 F.3d at 248-49 (citing Feeney, 495 U.S. at 304). As interpreted by the Supreme Court in Ex Parte Young, the Eleventh Amendment “permits suits for prospective injunctive relief against state officials acting in violation of federal law.” Id. at 248 (quoting Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004)).

         Here, Plaintiffs seek prospective injunctive relief against the Circuit Court. Under the Ex Parte Young exception, private citizens can bring such suits against “state officials acting in violation of federal law.” Lee-Thomas, 666 F.3d at 248 (quoting Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) (emphasis added). The Circuit Court is not a state official; it is an institutional arm of the state. Alexander, 2008 WL 6124449, at *7. As a result, the Ex Parte Young exception does not apply to Plaintiffs' suit against the Circuit Court, and it is, therefore, barred by the Eleventh Amendment. Accordingly, the Court will grant the Circuit Court's Motion and dismiss the Complaint as to the Circuit Court.

         B. County Motion to Dismiss

         Defendants argue that the Court should dismiss Plaintiffs' claims under the Rooker-Feldman doctrine, because Plaintiffs lack standing, and because they fail to state a claim. Plaintiffs counter that their claims do not fall within the narrow confines of Rooker-Feldman, that they have standing to sue the County, and that they have pleaded all of their claims sufficiently. The Court will address these arguments in turn, as they apply to Plaintiffs' claims.

         1. Rule 12(b)(1) Standard of Review

         Defendants bring their Motion under Rule 12(b)(6), but Rule 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction, the basis for Defendants' first two arguments. See CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011); Akers v. Md. State Educ. Ass'n, 376 F.Supp.3d 563, 569 (D.Md. 2019). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction “challenges a court's authority to hear the matter brought by a complaint.” Akers, 376 F.Supp.3d at 569. Under Rule 12(b)(1), “the plaintiff bears the burden of proving, by a preponderance of the evidence, the existence of subject matter jurisdiction.” Id. (first citing Demetres v. E. W. Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); then citing Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999)).

         Defendants challenging a complaint under Rule 12(b)(1) may advance a “facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting ‘that the jurisdictional allegations of the complaint [are] not true.'” Hasley v. Ward Mfg., LLC, No. RDB-13-1607, 2014 WL 3368050, at *1 (D.Md. July 8, 2014) (alteration in original) (quoting Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009)); ...

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